EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES – Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession

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A waiver of the statutory right to meet and confer must be “clear and unmistakable,” with the evidence demonstrating an “intentional relinquishment” of the right to bargain. (Modoc County Office of Education (2019) PERB Decision No. 2684, p. 11.) “Public policy disfavors finding a waiver based on inference and places the burden of proof on the party asserting the waiver.” (County of Santa Clara (2013) PERB Decision No. 2321-M, p. 19.) An employer asserting a waiver defense must prove that: “(1) it provided the employee organization clear and unequivocal notice that it would act on a matter, and (2) the employee organization clearly, unmistakably and intentionally relinquished its right to meet and confer in good faith.” (City of Palo Alto (2017) PERB Decision No. 2388a-M, p. 38, underline in original.) Because of the notice requirement, “a union cannot waive bargaining over a negotiable matter when it had no actual or constructive notice of the issue, until after the employer had already reached a firm decision.” (Regents of the University of California (2018) PERB Decision No. 2610-H, p. 47.)

Under this well-established precedent, the University failed to prove that Teamsters waived its right to meet and confer over FAQs. Teamsters did not receive a copy of the FAQs before the University sent them to certain bargaining unit employees. Without advance notice of the entirety of the University’s intended communication to unit employees, Teamsters could not have intentionally relinquished its right to meet and confer over the FAQs. (See City of Sacramento (2013) PERB Decision No. 2351-M, pp. 39-40 [when the exclusive representative first learns of a unilateral change after it has been implemented, “the ‘notice’ is nothing more than ‘notice’ of a fait accompli and the question of waiver never arises”].) (pp. 18-19.)